Journey of judiciary in Kashmir

Brief and Background

Dr Farooq Fayaz goes into the genesis of judiciary in Kashmir
Publish Date: Jul 29 2006 12:00PM
In the liberal democratic structures all over the world judiciary as a separate and powerful organ of the government attained highest degree of public respectability. In Kashmir too the administration of justice has been an inseparable part of governance in Jammu & Kashmir. The state has distinction of having earliest recorded history. Kalhan Pandit, the 12th century historian in his famous Sanskrit work “Rajtarangni” – the river of kings, has given detailed account of administration of justice in ancient Kashmir. According to Kalhan the dispensation of justice was part of sovereign functions of the king. The king in ancient and medieval Kashmir was repository of justice. With the advent of times dispensation of justice came to be delegated and entrusted to the authorities – Dharmadhiyasha, Rajasithaniya, Setheya, Qazi, Mir Adal, etc. With the establishment of Muslim rule in Kashmir in the beginning of the 14th century, the administration of justice received new dimension and momentum. History is replete with references when Muslim Sultans in Kashmir dispensed justice keeping in view the merit and objectivity of the case. The institutionalization of the administration of justice on modern lines in Jammu & Kashmir began with the accession to throne of Maharaja Ranbir Singh. The Maharaja took deep interest in organizing administration of justice at District & Taluka level. He also ordered codification of laws. Ranbir Penal Code was the first codified penal law in the princely states. The Maharaja in 1857 AD setup two Chief Judge Courts at Srinagar and Jammu. In the following two decades the number of courts at District & Taluka level had risen to 25. In 1877 the ruler set up a High Court in the State. The High Court, however, worked within confines and as part of the Darbar and was presided over by one of the members of Darbar known as Law Member. In 1912 with coming into force of Code of Criminal Procedure, the High Court became the highest court of criminal appeals and revisions. In July 1921 for the first time, Dr Sir Muhammad Iqbal came to Kashmir in connection with professional engagement as a lawyer to plead the case of one Rehman Rah who was arrested on the allegation of having some illicit relations with a girl. In the twenties of the 20th century, with Kashmir exposure to modern influences, socialist ideas began to pour into the body politic of Kashmir. In tune with the labour unrest, witnessed all around the world against industrial capitalism, Kashmiri labourers working in state owned Silk Industry protested against the high handedness of officialdom and demanded justifiable wages for their labour. The Maharaja forces resorted to force to crush the labour unrest. A case was filed against the leader of Silk Factory labourors. Mazdoors engaged Sheikh Abdul Aziz Vakil of Jammu to plead their case and the vakil presented himself before the hon’ble court on 28th July (1923-24). In 1920, Sir Tej Bahadur Sapru appeared before the hon’ble court on 12th October, 1920. In the history of Kashmir Judiciary, 7th April 1928, constitutes and epoch making event, when for the first time any Kashmiri Muslim was inducted as a member of Judicial Bench. The name of the Muslim Judge was Agha Syed Hussain. To avoid social abuses and gender exploitation, the state government on 27th June, 1928 passed Child Marriage Prevention Act. The act put restriction and declared it unlawful that a boy can not go for marriage if his age is less than 18 years and the girl can not go for marriage if she has not attained 14 years of age. It was in 1928 that the High Court of Judicature, truly independent in all respects, headed by the Chief Justice and comprising of two puinse judges was set up. The High Court of Jammu and Kashmir, thus, has the distinction to claim rightly as the first High Court in the Country. An important landmark in the history of the High Court was needed with coming into Force Constitution Act of 1939. Under the Act the High Court was granted power and superintendence over the Subordinate Courts. In 1941 Appeal to His Highness Act was promulgated and a Board of Judicial Advisers set up to hear appeals from the decision of the High Court. September 10th 1943 was yet another landmark day in the history of State judiciary when Maharaja issued Letters Patent to the High Court. With the promulgation of Constitution (Application to Jammu & Kashmir) Order 1954 the jurisdiction of Supreme Court of India was extended to the State of Jammu & Kashmir and High Court was given power to issue writs, directions and orders for enforcement of fundamental rights so for as these were applied to the State of Jammu & Kashmir. The extension of jurisdiction of Supreme Court led to the abolition of Board of Judicial Advisers. To hear the appeals pending before the Board, a Bench of Supreme Court of India held court at Srinagar. The Jammu Kashmir, thus, has the unique distinction of being the only State in the Country where the Supreme Court of India set up a Bench to hear the pending appeals. The year 1957 marked another milestone in the history of High Court. The State Constitution was adopted by the Constituent Assembly and under the Constitution, High Court was made a Court of Record with a power to punish for its contempt. In the year 1964 the District Scheme was introduced and a District & Sessions Court was set up at every District Headquarter. The step further strengthened the judicial set up at the District level. In 1967 the State legislature, in accordance with the Constitutional mandate, passed the Act providing for separation of judiciary from the executive. This fulfilled the long cherished dream of the independence of judiciary at all levels. By the Constitution (Application to J & K) Amendment order of 1971, Article 226 of the Constitution of India was applied to the State and the territorial jurisdiction of the High Court was enlarged as to enable it to issue Writs to any government or authority in any part of the country. The year 1989 saw new challenges confronting every established institution of the State including the High Court due to unprecedented violence. An effort was made to destabilize and run down the established institutions that form bedrock of a democratic polity, governed by the rule of law. The High Court unscathed by this turbulence, stood firm in its resolve to uphold rule of law and serve the cause of justice. Despite long and unending strikes and like disruptions, the Benches of the High Court were held regularly, cause lists issued, hundreds of cases decided and justice done to the needy. The High Court continued to be the place of faith for the general masses; the aggrieved, flocked to the High Court to get their grievances redressed and left with the satisfaction of having received justice. Hon’ble Shri Justice H. K. Sema, Judge Supreme Court of India (Chief Justice of the High Court of Jammu & Kashmir in the year 2001-02), in his reminiscence records the following impression: “…(W)hat impressed me most was that the High Court had been a beacon of faith and hope for the people of the State in testing and turbulent times. The confidence of the people in this great institution had never faltered in the least. The litigant public felt safe in putting forth their grievances before the High Court and remained satisfied on their grievances getting set right.” The High Court of Jammu & Kashmir during last 75 years of its existence has attained enormous growth in strength of stature. Its strength from a 3 Judge Court has risen to 14 Judges. Great legal stalwarts of the Country have adorned the Bench of the High Court from time to time. The legal luminaries of the Country before and after independence appeared before the Court. Their assistance helped the High Court to acquire a place of eminence in the country. The High Court during last seven and half decades has made significant contribution to development of law and made valuable addition to the legal literature. The High Court and the District Judiciary in the State like other parts of the Country is confronted with challenges like huge arrears, escalating litigation costs and frustrating delays in dispensation of Justice. The problems because of their enormity are shaking public faith in justice delivery system. It is becoming increasingly difficult for the millions and millions of our country men to have “access to justice”. The direct result of denial of such access is a sense of injustice seeping in at all levels. Every constituent of administration of justice system has to guard against “such a sense” creeping into our social fabric. Any laxity can have disastrous effects for the democratic polity and endanger rule of law. The High Court of J & K has braced itself up to face these challenges, take the bull by its horns and reinforce and strengthen faith of general public in judiciary. The High Court during last 9 months has taken important and bold steps to cut at the backlogs, ensure speedy and affordable justice to one and all. The High Court has taken the letter addressed by Hon’ble Justice Y. K. Sabarwal, the Chief Justice of India to the Chief Justices’ in December, 2005, as the “roadmap” or “marg darshan” while devising and implementing the strategies to hone up the administration of justice in state and meet the contemporary challenges. The result has been encouraging. The High Court has since October 2005 taken following important steps to strengthen and improve overall efficiency of administration of justice machinery at all levels in State: 1. The litigation directly affecting human life has been identified at High Court as well as District Court level as priority litigation and special benches have been constituted and working day set apart to deal with such litigation. The cases relating to family matters like maintenance, divorce, succession, guardianship, cases relating to payment of compensation to the legal heirs of victims of vehicular accidents, the cases relating to termination/dismissal and payments of salary/wages, the cases under work-mans compensation Act, the cases relating to under-trial prisoners, the Habeas Corpus petitions and the cases in which trial court proceedings are stayed, have been included in the “Priority Litigation Category”. The methodology has helped to clear the backlog in priority sector and bring it to 5 year pendency level. Approximately 15000 cases have been decided most of which belong to priority litigation in last nine months. The District Courts have also been asked to identify “priority litigation” and formulate an action plan to clear the pendency of such litigation with proper dispatch. Each of the trial courts in the State has formulated an action plan which is being strictly adhered to and implemented. The focus at the Trial Courts level is on the litigation affecting human life as also cases under Negotiable Instruments Act, petty offences, economic offences and the case relating to under-trial prisoners. Special focus is also placed on the cases under Prevention of Corruption Act. Additional courts are being set up at Srinagar and Jammu to speed up adjudication of cases under the Act. 2. The second step taken to meet the challenges has been strengthening free legal aid and Lok Adalat mechanisms. The conciliatory justice as against adjudicatory justice is answer to the problems faced by Indian judiciary. There has to be an attitudinal shift at all levels. The free legal aid and Lok Adalat mechanism has been adopted as a frontal strategy to respond to both huge pendencies as well as exorbitant litigation costs. 200 Lok Adalats have been held during last 9 months, approximately 4000 cases decided and 6.25 crore rupees awarded without leaving any chance of future litigation. The figure excludes the Lok Adalats organized for earthquake affected people. A significant achievement was made by pressing into service the mechanism to save the hapless victims of the devastating earthquake from the litigation anticipated regarding entitlement and apportionment of relief. A unique arrangement of involving the officers of administrative and relief machinery with the mediation and conciliation at pre-litigation stage was adopted and a few thousand cases involving apportionment of 25 crore rupees were decided by Lok Adalats within a short span of 5 weeks. The best reward and recognition to the effort came from His Excellency, the President of India when His Excellency on visit to Uri, suggested organizing similar “mobile Courts” in all parts of country. 3. An important component of multifaceted strategy to ensure access to justice to one and all has been integrating Information and Communication Technology (ICT) with administration of justice machinery. The High Court of J&K became first of few courts of the country to computerize all the courts in a district under “City Civil Courts Computerization Programme”. All the subordinate courts at Jammu have been computerized as part of the pilot project. The litigants and lawyers can monitor progress of the pending cases on the website without having to actually visit the courts. The judgments and interim orders are being put on the network to minimize the role of ministerial staff in making available case details to litigants. This is bound to help get rid of menace of corruption at the lower levels and improve efficiency of every constituent of the administration of justice mechanism. “Local Area Network (LAN)” has been set up at High Court (wings) Srinagar and Jammu to make available intranet and internet facilities to the Judges, Lawyers, officers and litigant public. The District Judge, Additional District Judge and Chief Judicial Magistrate Courts have been computerized throughout the State. With the present pace of computerization the facilities like video conferencing, E-filing, etc look like a visible possibility within the present calendar year. 4. The lack of infrastructure has been a serious problem with the lower courts in particular and the judiciary in general. The other limb of multi pronged strategy has been to identify the infrastructural requirements of the Courts at various levels, activate the agencies responsible for preparation of plans/designs and estimates for the proposed work, take steps to get the plans and estimates approved, and last of all to mobilize necessary resources. The summer vacations were utilized to accomplish this task. All the courts of Kashmir Province were inspected and an on spot assessment of infrastructure deficiencies made and steps taken to supplement the facilities for judicial officers, lawyers, para-legals and litigant public. The projects worth more than 115 crore rupees including District Court Complex, Srinagar; pending block of High Court, Srinagar; Lawyers Chambers at Srinagar and Jammu; and Judicial Academy complex have been cleared in the current year. 5. The High Court of Jammu & Kashmir was first to establish a Judicial Officers Training Institute. The State Judicial Academy was established in the year 2001. The Academy, however, remained by and large dormant and inactive without organizing regular training programmes. The need for continued training to Judicial Officers, Court Officers and officials has been time and again emphasized by the Apex Court. The new legal challenges require the Judicial Officers and all other constituents of Administration of Justice mechanism to get equipped with new strategies, make innovations and change attitude to meet such challenges. The State Judicial Academy was activated in November, 2005. The Academy has organized three comprehensive training programmes for Judicial Officers during last six months. All the Judicial Officers of Civil Judge (Senior and Junior Division) rank got benefited by the training programmes. A full time Director of the status of High Court Judge, has been sanctioned for the State Judicial Academy. The support staff is likely to be sanctioned within current financial year. Training programmes are proposed to be organized for the Judicial Officers and Gazetted Officers of the High Court by the end of this year. 6. The Judiciary as an institution, because of the very nature of the duties it is saddled with, is expected to have “zero tolerance” as regards any kind of corruption, misuse of authority or malpractice. “Justice must not only be done but must seem to be done”, is the cardinal principle of judicial ethics. The very fact that the Judiciary commands faith, confidence and respect of general public, makes a strong, efficient and result oriented vigilance and accountability mechanism imperative. The High Court of Jammu & Kashmir has been alive to such an imperative. A Vigilance Wing of the High Court headed by a senior District & Sessions Judge designated as “Registrar Vigilance” enquires into the complaints received against judicial officers, members of ministerial staff, petition writers and other para-legals and submit results of such enquiries to the disciplinary authority. In the last few years seven senior judicial officers of district judge rank have been terminated/dismissed/ compulsorily retired or denied continuation in service beyond 58 years, after charges against the officers were established on regular enquiry. The number of officers visited with disciplinary action is not indicative of the extent of complaints but reflects the sensitivity shown by the Vigilance Wing and the High Court to any complaint even ex facie of minor nature. As a matter of practice the Vigilance Wing takes cognizance of every complaint it receives, makes an attempt to dig out the true facts and draw conclusions on an objective appraisal of the material collected during enquiry. Efforts are afoot to make the Vigilance Wing stronger and effective by supplementing the manpower and infrastructural resources. Complaint boxes have been put/fixed out side all the Courts so as to make it easier for the people having grievances regarding the conduct of judicial officers or staff to approach the Vigilance Cell for redressal of their grievances. The High Court is on a path to achieve excellence in every department of administration of justice system and ensure affordable and speedy justice to one and all. The immediate goals set by the High Court for in the next one year are: 1. To integrate Information and Communication Technology (ICT) with the administration of justice at Taluka, District, Division and State level. 2. To connect all the Subordinate Courts through internet with the High Court, so as to have information network/grid in place and make quick and online exchange of information and statistics a reality. 3. To ensure that all the Mufasil Courts in the State presently housed in rental premises, are shifted to the Court Buildings with adequate facilities for Presiding Officers, Lawyers and the litigant public. 4. To clear all pre-2000 backlogs civil as well as criminal in the High Court and Subordinate Courts. Having regard to the track record/achievements made during last one year and long term decisions regarding mobilization of infrastructure facilities, the High Court can be well said to be on a steady course to ensure access to justice to all.
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